Washington v. East Baton Rouge Parish School System et al

Filing 46

ORDER: 37 Pltfs Notice/motion to file the waiver requests... is GRANTED only to the extent that proofs of service for all defts other than Decuir are deemed filed. The motion is DENIED in all other respects. FURTHER ORDERED that 38 pltfs motion is GRANTED only to the extent that pltf is given an additional 60 days from the date of this Order to effect service on Decuir. In all other respects, the motion is DENIED. FURTHER ORDERED that 40 Pltfs Motion for Extension in compliance with the court order of 1/31/2011, is GRANTED only to the extent that (1) Within 45 days pltfs shall submit a copy of the actual Title VI administrative complaint submitted to EEOC and/or the results of the agency's determination, and the Right-to-Sue n otification. (2) Within 45 days pltfs shall submit a copy of the actual EEOC charge relating to the Title VII claims and a copy of the Right-to-Sue notification. In all other respects, the motion is DENIED. FURTHER ORDERED that no further extensions of time will be granted with regard to production of the requested documents and failure to comply shall result in a recommendation that pltfs claims be dismissed. Signed by Magistrate Judge Docia L Dalby on 4/12/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LESTER L. WASHINGTON

CIVIL ACTION

VERSUS

NUMBER 09-662-BAJ-DLD

EAST BATON ROUGE PARISH
SCHOOL SYSTEM (EBRPSS), ET AL
ORDER
This matter is before the court on a referral from the district court of three motions
filed by pro se plaintiff:
1.

Notice/motion to file the waiver requests, rejection of the waiver of the service
of the summons, exhibits, and proof of service in the above case and service
of the complaints upon the office of general counsel/attorney’s office of the
defendants” (rec. doc. 37);

2.

Motion/request for a subpoena or for the court to order EBRPSS to disclose
and submit the records of Mr. Decuir, past EBRPSS teacher and his
identifiable information and whereabouts and/or drop him from this case and
order EBRPSS/EBRPSB to accept full responsibility for his uninvestigated
past actions, abuse, harms, damages, and claims, etc. in this case (rec. doc.
38); and

3.

Motion for 30 day extension in compliance with the court order of (sic) dated
January 31, 2011 and received about February 15, 2011 to gather, address,
and re-file the requested documents in this case with a clear explanations of
the filings for a fair, unbiased, non-discriminatory, and equal hearings, review
of the facts, evidence in the case, and completely fair due process and
litigation” (rec. doc. 40).

Notice/Motion to file waiver requests, etc. (rec. doc. 37)
On August 19, 2009, plaintiff filed a complaint in this court, asserting a myriad of
claims under numerous state and federal laws. (rec. doc. 1) On August 18, 2010, the court
allowed plaintiff to file an amended complaint and proceed with service on defendants. (rec.
doc. 26) On October 19, 2010, the court ordered that plaintiff effect service upon the
defendants by January 14, 2011. (rec. doc. 33)

On January 12, 2011, plaintiff filed the instant motion, requesting many different
actions by the court; however, the court notes that the motion basically is one in which
plaintiff “seeks the approval of all attempts, service, and the waiver, summons, exhibits,
complaints, etc. upon the defense in which the waiver and some summons were rejected.
. . .” (rec. doc. 37, pg. 2) Plaintiff’s motion also seeks, among a myriad of requests
unrelated to this motion, “any and all other relief, money, compensation, reviews,
protections, and other benefits . . . in this and all historical and related cases that were not
investigated. . . .” Id., at pg. 3. Plaintiff’s motion includes several proofs of service. (rec.
doc. 37, pgs. 7-22)
On March 25, 2011, defendants filed a motion to dismiss (rec. doc. 42), wherein they
admitted that plaintiff “finally achieved service of the Complaint” on all defendants except
N. Decuir.1 (rec. doc. 42-1, pgs. 1-2) Thus, the motion will be granted to the extent that the
proofs of service for all defendants except Decuir are deemed filed, and the complaints are
deemed served.
With regard to the remaining portions of plaintiff’s motion, and as explained to
plaintiff previously, such a broad request for relief simply cannot be addressed by this court
as it would encompass an untold number of complaints and violations, either filed or
unfiled, whether in this court, another court, or an administrative agency, and concern
unnamed plaintiffs. Plaintiff’s motion is an improper vehicle in which to request such relief,
and the court therefore will deny the remaining portions of the motion.

1

Defendants did not accept service on Decuir as they aver that they have no knowledge of this person.

-2-

Plaintiff’s Motion for a subpoena or court order regarding Decuir (rec. doc. 38)
In this motion, plaintiff requests that the court order the East Baton Rouge Parish
School System to either disclose and submit the records of Decuir, including his identifiable
information and whereabouts, or have defendants drop Decuir from the case and accept
full responsibility for his alleged actions. (rec. doc. 38) Plaintiff complains that the school
system and/or school board refused to accept service on behalf of Decuir, whom plaintiff
describes as a past employee of Scotlandville High School. Plaintiff did not attach a
summons or any proof that service was attempted on Decuir; thus, it is unknown where
or on whom plaintiff may have attempted to serve Decuir. Plaintiff confuses the distinction
between the school system and/or the school board and the individual. The school system
and/or school board is not Decuir, and plaintiff has presented no evidence whatsoever that
Decuir has authorized either the school system and/or the school board to accept service
of process on his behalf. It is Decuir who must be served, not his employer or former
employer.
Plaintiff also wants the court to order other defendants to give plaintiff Decuir’s
identifying information so that he may be served; however, a scheduling order is not in
place nor has any proper discovery taken place.
Federal Rule of Civil Procedure 4 (c) provides that “the plaintiff is responsible for
having the summons and complaint served within the time allowed by Rule 4(m) and must
furnish the necessary copies to the person who makes service.” Rule 4(b) states that the
plaintiff may present a summons to the clerk [of court] for signature and seal, and if the
summons is properly complete, the clerk must sign, seal, and issue it to the plaintiff for

-3-

service on the defendant. Thus, it is plaintiff’s responsibility to exercise due diligence in
ascertaining either the complete name and/or address of Decuir, and then to present a
properly completed summons. Verrette v. Majors, 2008 WL 4793197 (W.D. La. 2008)
Plaintiff’s motion is devoid of any due diligence on his part to locate Decuir and/or properly
name Decuir as a defendant.2 At this point, the court may either dismiss, without prejudice,
Decuir as a defendant, or allow plaintiff additional time within which to effect service on
Decuir. The court therefore will grant the motion only to the extent that the court will allow
plaintiff an additional 60 days within which to serve Decuir.
Plaintiff’s Motion for Extension of Time to Gather Addresses
and Refile Documents (rec. doc. 40)
On January 31, 2011, the court denied plaintiff’s motion for equitable tolling
regarding his Title VI and Title VII claims3, and ordered plaintiff to:
1.

Submit a copy of the actual Title VI administrative complaint submitted to the
EEOC and/or the results of the funding agency's determination, and the
right-to-sue notification on the same administrative complaint; and

2.

Submit a copy of the actual EEOC charge relating to the Title VII claims of
"false information in personnel file" and "disclosure of medical information to
the public," and a copy of the right-to sue notification on the same EEOC
charge.

(rec. doc. 39)
Plaintiff was given 30 days to comply, and advised that failure to comply shall result
in a recommendation that plaintiff's Title VI and/or Title VII claims be dismissed. Id. On

2

Moreover, the proper means to request information from a party, i.e., the address of another potential
defendant, is by way of a request for production of documents and/or interrogatories, although any such
request at this point is premature as there has been no Rule 26(f) conference or scheduling order entered in
this case.
3

Plaintiff’s Title VI and Title VII claims allegedly arise under 42 U.S.C. § 2000(d) and (e) of the Civil
Rights Act of 1964/1994.

-4-

March 1, 2011, plaintiff filed the instant motion, requesting an additional 30 days to comply.
Before the court could rule on that motion, plaintiff filed a response to the court’s January
31, 2011, order. (rec. doc. 41) A review of the “response,” however, indicates that it is no
more than a re-filing of more than 400 single-spaced pages of documents, none of which
are the EEOC charges of discrimination, agency determinations, or right-to-sue
notifications.
As the court has instructed plaintiff previously, in the Fifth Circuit, any charge of
discrimination filed with the EEOC must be timely4, and the plaintiff must have received a
right-to-sue letter before filing a lawsuit in federal court. Dao v. Auchan Hypermarket, 96
F. 3d 787, 789 (5th Cir. 1996). As plaintiff’s complaint was filed with this court on August
19, 2009, any right-to-sue notification would have to have been received 90 days prior to
the filing of the complaint in order for plaintiff’s complaint to be deemed timely.5 Thus,
before the federal court may consider plaintiff’s Title VII claims, plaintiff first must exhaust
his administrative remedies. National Association of Government Employees v. City Public
Service Board of San Antonio, Texas, 40 F.3d 698, 711 (5th Cir. 1994), citing Sanchez v.
Standard Brands, Inc., 431 F2d 455, 466 (5th Cir. 1970). This requirement to exhaust
administrative remedies also applies equally to Title VI claims.

4

A charge of discrimination must be filed with the EEOC within 300 days after learning of any
discriminatory conduct in order to avoid prescription of that claim. Huckabay v. Moore, 142 F.3d 233, 238 (5th
Cir. 1998)(citing 42 U.S.C. § 2000e-5(3)(1)).
5

Moreover, a suit which follows the issuance of a right-to-sue notification from the EEOC is limited
in scope to the discrimination contained within the charge itself, like or related to the allegations in the EEOC
charge, can reasonably be expected to grow out of the charge of discrimination, or which developed during
the course of the EEOC investigation of that charge. Sanchez, at 466. See also, Gerac- Ogashi v. Iberia
General Hospital, 952 F. Supp. 360 (W.D. La. 1996); Young v. City of Houston, 906 F.2d 1777, 179 (5th Cir.
1990); 42 U.S.C. §200e(5( 3)(1).

-5-

At this point, there is no indication in the record that plaintiff exhausted his
administrative remedies under either Title VI or Title VII, as he has failed to comply with the
court’s order to provide the charges of discrimination, any agency determinations,6 or rightto-sue notifications.7 The court notes that plaintiff has alleged that he is a past EEOC
investigator, but has only summarized the purported findings of the EEOC in his filings, or
attached correspondence indicating that in May 2009, he requested that the EEOC
formulate charges for him. (rec. doc. 41-1, pg 59) There is nothing in the record to suggest
that charges of discrimination were prepared regarding the placing of allegedly false
information in his personnel file, or that a right-to-sue notification was received on this
issue. However, the court will grant plaintiff’s motion for extension and allow plaintiff one
final opportunity to provide the court with the requested charges of discrimination, agency
determinations, and right-to-sue notifications, as explained in the January 31, 2011, order.
The court cautions plaintiff, however, that this is not an opportunity to refile any previously
filed documents, submit evidence of EEOC complaints against non-defendants in this case,
or assert the same repetitious allegations; this is an opportunity to provide the actual
charges, determinations, and notices themselves which are the subject of this lawsuit, in
order that the court may determine if plaintiff exhausted his administrative remedies before
bringing suit in this court. Failure to comply with this order shall result in the

6

In the hundreds of pages of exhibits filed by plaintiff, the court notes that the only agency
correspondence is an April 1, 2010, letter from the Office for Civil Rights regarding plaintiff’s request for
reconsideration. (rec. doc. 41-4, pgs 37-40) Such document is not an agency determination, nor is it an EEOC
charge of discrimination or right-to-sue notification.
7

While plaintiff's amended complaint seems to assert that he received right-to-sue notifications on
September 16, 2009 (rec. doc. 27, pg 14), and April 28, 2010 (Id., at pg 18) no copy of the notifications have
been provided.

-6-

recommendation that plaintiff’s Title VI and Title VII claims in this lawsuit be dismissed in
their entirety.
Accordingly,
IT IS ORDERED that plaintiff’s notice/motion to file the waiver requests, rejection of
the waiver of the service of the summons, exhibits, and proof of service in the above case
. . . (rec. doc. 37) is GRANTED only to the extent that proofs of service for all defendants
other than Decuir are deemed filed. The motion is DENIED in all other respects.
IT IS FURTHER ORDERED that plaintiff’s motion (rec. doc. 38) , be and it is hereby
GRANTED only to the extent that plaintiff is given an additional sixty (60) days from the
date of this Order to effect service on Decuir. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for 30 day extension in compliance
with the court order of (sic) dated January 31, 2011. . . (rec. doc. 40) is GRANTED only to
the extent that,
1.

Within forty-five (45) days of this order, plaintiff shall submit a copy of the
actual Title VI administrative complaint submitted to the EEOC and/or the
results of the funding agency’s determination, and the Right-to-Sue
notification on the same administrative complaint; and

2.

Within forty (45) days of this order, plaintiff shall submit a copy of the actual
EEOC charge relating to the Title VII claims of “false information in personnel
file” and “disclosure of medical information to the public,” and a copy of the
Right-to sue notification on the same EEOC charge.

In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that no further extensions of time will be granted with
regard to the production of the requested documents, and failure to comply with this order

-7-

regarding production of the EEOC documents shall result in a recommendation that
plaintiff’s Title VI and/or VII claims be dismissed.
Signed in Baton Rouge, Louisiana, on April 12, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY

-8-